The Catholic Lawyer
Volume 1
Number 4 Volume 1, October 1955, Number 4
Article 8
April 2016
Nullity of Marriage in Ecclesiastical Courts
John B. Gest
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John B. Gest (2016) "Nullity of Marriage in Ecclesiastical Courts," The Catholic Lawyer: Vol. 1: No. 4, Article 8.
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The following article is reprinted from 26 Pennsylvania Bar Associalion Quarterly 245 (April 1955) in response to requests of our readers.
NULLITY OF MARRIAGE IN
ECCLESIASTICAL COURTS
JOHN
A
B.
GEST*
LAWYERS have had some indirect experience with marriage
cases in which one or both of the parties has been in a proceeding
in a Court of the Roman Catholic Church for a declaration of nullity
of marriage. Legal periodicals usually do not discuss such proceedings
and it has been suggested that a resum6 of the law and practice involved
should be of interest to members of the Bar. The law, the terminology
and the procedure (largely influenced by Roman law), are all quite
different from that to which we are accustomed in our civil courts in
this country.
ANY
It is well at the start to state some fundamental ideas. The Code of
Canon Law was promulgated by Pope Benedict XV,' effective May 19,
1918, and a very few amendments have been added. It has been decreed
that the Code is the sole source of canon law, that is, of positive ecclesiastical law, for the Latin rite of the Church. The Church claims jurisdiction
over all baptized persons, and its legislation with respect to marriage
applies to all marriages in which one or both parties are validly baptized,
"Member of the Pennsylvania Bar.
The Code of Canon Law is, for the most part, a codification of already existing law
found in many different sources, including Decrees, Decretals, Councils, decisions
of the Rota and Papal Constitutions and Bulls.
It may be superfluous to remind lawyers that nullity either does or does not exist
ab initio, and so it is incorrect to speak of a canon law court nullifying or invalidating
a marriage. When the issue is validity, the court's decision is that nullity, from the
time of marriage, has or has not been proven.
For those interested in the cultural background of Canon Law, see "History of
the Sources of Canon Law," Part I, of Canon Law, by Archbishop Cicognani
(References).
While the decisions of the Ecclesiastical Courts have no bearing on the civil status
of marriage in this country, it is otherwise in some foreign countries, which give such
decrees binding effect in civil law.
OCTOBER,
1955
whether Catholic or not. Certain provisions
of the law are, however, expressly limited
to those baptized in the Catholic Church,
as, for example, those prescribing the "Form
of Marriage," which will be discussed later.
It is important to bear in mind that the
various provisions of the Code are sometimes: (a) explanations or applications of
natural law principles, as when the purposes
and essential qualities of marriage are stated
-(b) the same as to divine positive law,
as in statements concerning the sacramental
character of marriage, and-(c) purely positive (ecclesiastical) legislation, as, for
example, the provisions for certain impediments and certain validating conditions,
when such impediments or conditions would
not exist in the absence of legislation. The
natural law and the divine positive law
cannot be changed, but the Church can
change and dispense from her own laws.
Marriage is held to be a contract having
its origin in the natural law. The canon law
states that the primary object of marriage
is the procreation and education of offspring, and secondary purposes are mutual
assistance and the remedy of concupiscence.
The essential qualities of marriage are unity
and indissolubility.
The Church holds that marriage is always
a sacrament when validly contracted by two
baptized persons.' This includes all validly
baptized persons, Protestant as well as
Catholic. When one or both of the parties
are unbaptized, the marriage is not sacramental, but it is nonetheless a natural contract. It is held to be beyond the power of
2A
sacrament is defined as an outward sign instituted by Christ to give grace. The Church teaches
that there are seven sacraments, Baptism, Confirmation, Holy Eucharist, Penance, Extreme Unction, Holy Orders and Matrimony.
the state to change the essential nature of
marriage or to give the right of remarriage
to any one who has been validly married,
during the life of the spouse. In the case of
unconsummated marriage, and of nonsacramental marriage (that is, when one or
both of the parties are unbaptized), the
Church claims the right under authority of
Scripture and tradition to dissolve such
marriages under certain conditions. One of
these concerns what is called the Pauline
privilege. However, these are unusual and
involve principles not within the scope of
this article, which is concerned solely with
declaration of nullity.
When one of the parties is baptized, the
Church does not recognize any right in the
state to set up conditions for the validity of
the marriage. It does, however, recognize
the right of the state to pass reasonable laws
providing for the civil effects of all marriages. In the case of the marriage of two
unbaptized parties canon law does not apply
except to the extent that it is an application
of natural law principles. In such case the
Church recognizes the right of the state to
prescribe conditions for the validity of marriage not inconsistent, of course, with natural law. And in such marriages, that is of
the unbaptized, the validity of the marriage
would be dependent upon conformity with
requirements of the natural law, and the
laws of the state in which the marriage took
place provided the latter do not contravene
natural law principles. In general, natural
law would require contractual capacity of
the parties, free mutual consent manifested,
and freedom from natural impediments such
as existing marriage, or consanguinity-very
much as would be required at common law
in our civil courts.
Invalidity of the marriage of baptized
THE CATHOLIC LAWYER
persons may result from (a) the existence
of an impediment, (b) defect of consent or,
(c) in the case of those baptized in the
Catholic Church, from failure to observe the
form of marriage prescribed by Canon Law.
Impediments
Under canon law the impediments to
marriage are:
1. Impedient (impeding) impediments,
which make marriage unlawful but not
invalid; and
2. Diriment (from the Latin dirimere, to
destroy, frustrate, take apart) impediments
which render a marriage invalid.
As this discussion is confined to nullity
cases, we are not here concerned with the
first class, impedient impediments.'
Diriment impediments (which invalidate
marriage) are those concerning age, impotency,' existing valid marriage bond, disparity of cult, holy orders, solemn vows,
certain kinds of abduction, crime (i.e.,
adultery or conjugicide, both under specified
conditions), consanguinity, affinity, public
propriety and spiritual and legal relationship.'
The two classes of impediments are analogous to
the conditions in civil law, some affecting lawful-
ness, and others the validity, of the marriage. An
example of the first class (impediment), is a simple
vow of celibacy by a layman.
Sterility is not an impediment of any kind.
It is impossible in the space available to discuss
these terms except very generally. Consanguinity
relates to marriage of second cousins or closer
relatives. Affinity relates to marriage with first
cousins or closer relatives of a deceased spouse.
Public Propriety forbids the marriage of a man
with the close relatives of one with whom he has
lived in public or notorious concubinage. Spiritual
relationship exists between a baptized person and
the minister and sponsors at the baptism. Legal
relationship exists where the civil law declares
Some impediments exist purely by reason
of ecclesiastical legislation (canon law) and
a dispensation therefrom can be granted for
a sufficiently grave cause. Disparity of cult
(or worship), i.e., between a baptized Catholic and an unbaptized person, is an exampie. Affinity is another example, as when a
man obtains a dispensation to marry his
deceased wife's sister.' The impediment of
existing valid marriage may be taken as an
example of one from which a dispensation
cannot be granted because it exists under
divine law independently of legislation.
Matrimonial Consent
Canon law requires that the consent of
the parties be duly manifested. This consent
is a free act of the will by which the parties
mutually give the perpetual and exclusive
right to the acts suitable for the procreation
of children.
The law provides that error as to the person renders a marriage invalid. An error,
however, as to a quality, for example,
wealth, lineage, virtue, which did not
amount to an error of the person, would not
invalidate the marriage.
Error as to the unity, indissolubility, or
sacramental character of marriage does not
vitiate the consent. However, it is provided
in the Code that if one or both of the parties
by a postive act of the will excludes marriage
or an essential property of marriage the
contract would be null. The distinction is
important. For example, if one mistakenly
parties incapable of marrying on account of legal
adoption. The Canon Law adopts the civil law in
this impediment. Disparity of Cult is in marriage
between a baptized Catholic and an unbaptized
person.
' Henry VIII argued unsuccessfully that his marriage to his deceased brother's widow was against
natural law and that the dispensation was therefore
invalid.
OCTOBER,
1955
believes that divorce and remarriage are
consistent with the nature of marriage, his
marriage is valid. That is an interpretive
error in the understanding, and is not in the
will. But if he understands that marriage is
indissoluble and deliberately restricts his
intention by excluding that essential of marriage, then his marriage is invalid by defect
of consent.'
The Code also lays down certain principles or rules for determining the validity of
marriage when a condition is placed upon
the consent.
The law further provides that marriage is
null when it is contracted because of violence or grave fear, caused unjustly by an
external agent, to free himself from which
one is compelled to choose marriage.
Form of Marriage
The Code contains provisions concerning
the "Form of Marriage," obligatory on persons baptized in the Catholic Church, as a
necessary condition for validity. This requires the presence, under ordinary circumstances, of a duly authorized priest and two
witnesses. That is why the marriage of a
Catholic before a minister, judge or other
official is invalid.
The parties to the marriage must be present, either personally or by proxy, and the
matrimonial consent must be manifested by
words if the parties can speak; otherwise,
signs are used.
' Two cases which attracted much attention may be
cited to illustrate the difference between an interpretive misunderstanding of the nature of marriage
on the one hand, and the wilful exclusion of the
essential quality of permanence on the other.
In 1895 Count de Castellane married Anna
Gould. After eleven years she secured a divorce
and remarried. The Count sought a declaration of
nullity on the ground of a condition contrary to
the perpetuity of the bond placed by Anna before
and at the time of marriage. There was a great deal
of testimony showing that the bride believed in the
possibility of divorce. After much study the final
decision of the Rota was that there was not a
positive act of the will or conditio sine qua non
excluding a perpetual union. This was an interpretive error.
The Marconi case was different. In 1905 he had
married Beatrice O'Brien. They were divorced in
1924. There was an explicit pre-nuptial agreement
between the couple and between the groom and
the bride's mother that there would be a divorce
should the union not prove happy. In other words
their contract of marriage was made with a reservation of the right to divorce. This was not an
interpretive error and the marriage was held invalid.
(Condensed from Ayrinhac-Lydon, 230, 231,
see References).
Failure to meet the canon law requirements relating to consent is broadly spoken
of as an impediment, but the correct designation is a defect of consent.
The requirement of the form of marriage
(presence of priest and two witnesses) is
only binding on those baptized in the Catholic Church and therefore only affects marriages in which one or both of the parties are
baptized Catholics. Since the form of marriage is a requirement of ecclesiastical law,
and not of natural law, a dispensation can
be obtained under certain conditions. And
so far as concerns form, the marriages of
other than Catholics are valid if they satisfy
natural law requirements (and also State
requirements in cases in which neither party
is baptized).'
Before the decree "Ne Temere," in 1908, canon
law did not require the presence of the priest as a
condition for validity of Catholic marriage in
large parts of this country, and prior to a change
in the code effective January 1, 1949, it was not
required of a baptized Catholic whose parents
were not Catholic and who had not been brought
up as a Catholic.
Marriage is in the free exchange of consent of
the parties, mutually expressed; in sacramental
THE CATHOLIC
The Court
Each diocese is bound to have a tribunal
for hearing and deciding ecclesiastical cases.
It is presided over by the Officialis (President Judge) appointed by the Bishop, and
associated with him may be one or more
Vice-Officiales (Judges). There are also a
number of Synodal, or pro-Synodal judges.!'
Nullity cases, except where they can be
determined by summary process (see Procedure, infra) are tried by a court of three
Judges (Collegiate Tribunal). One of the
Judges must be the Officialis, or a ViceOfficialis (Presiding Judge). He may designate a Ponens whose duty is to report on
the case and write the Sentence (or Judgment).
An Auditor is appointed, either permanently or for a particular case. He is usually
chosen from among the Judges. He summons and examines witnesses, and has such
other duties as may be assigned to him by
the terms of the mandate of his appointment,
for example, to sign citations, examine and
compare documents and administer oaths.
His position is somewhat like that of a
Master in our civil divorce practice, but in
forwarding the record to the Judges he does
not make findings, conclusions or recommendations."
marriages the parties are the ministers of the sacrament. The presence of the priest and the witnesses
are validating requirements by legislation, not by
natural or divine law.
Marriage defective in required form is often
referred to as "clandestine."
Synodal judges are those appointed at a diocesan
Synod which is an extraordinary convocation of
the diocese, presided over by the Bishop. He is the
sole legislator. Prosynodal judges are those appointed between Synods. The term of office of
these judges is for ten years unless a Synod is
held sooner.
'The duties of the Auditor should be of interest
LAWYER
There is a Promoter of Justice, usually
appointed permanently, for each diocese.
His duty is to intervene in cases in which
the public good is concerned and to safeguard procedural law.
The Defensor Vinculi, or Defender of the
Bond, is appointed by the Bishop either
permanently or for a particular case. His
presence is usually required at the examination of witnesses, although he may be
excused at the discretion of the Auditor. His
duty is to present all facts and argument in
favor of the validity of the marriage, and to
prepare the questions to be presented to all
who are cited to give testimony in the case."
There are also Procurators (attorneys)
and advocates available. In this country they
to those concerned with reform of our Divorce
Law. In a note in the University of Pennsylvania
Law Review, June, 1953, p. 1204, The Administra-
tion of Divorce, it is said:
"It is apparent that many masters seriously
misapprehend their statutory function. Many law-
yers conceive the function of the master to be
merely to decide whether a case has been made
out; even judges are sometimes inclined to consider it sufficient that the interests of both parties
have been protected, overlooking the state's interest in the matter. Some lawyers even feel that the
master should aid the plaintiff in the presentation
of his case and the occasional master who diligently
probes the plaintiff's allegations is likely to find
himself the object of other lawyers' criticism for
treating the plaintiff 'like a defendant in a criminal
trial'." (1222, 1223).
" The duties of the Defender of the Bond suggest
those of the Proctor in the English Court. It is said
in the same note (supra) that:
"... In England the public interest is protected
by an officer known as the Proctor, who intervenes, instructs counsel when so directed by the
court and investigates the possible existence of
collusion. In the United States less than half the
jurisdictions have any provision for an office which
resembles the Proctor, and those statutory provisions which do exist generally cut down the scope
of the office." (1224)
OCTOBER,
1955
are always members of the clergy. A Procurator (attorney) is appointed for each
case from the list of advocates, with authority to represent the Libellant, and to accept
service of notice and other papers. One may
be appointed for the Respondent. One or
more advocates may also be appointed to
file briefs and present argument on points
of law involved.
These officers of the Court usually have
degrees in canon law and have been trained
in Rome or in the Graduate School of the
Catholic University of America.
There is also at each trial a Notary designated by the Presiding Judge. His duty is to
commit the questions and answers to writing, to attest the record and certify copies,
to be present at the drafting of process and
its discussion and so forth.
The Proceeding
There are two procedures for a declaration of nullity, their applicability depending
upon the nature of the case. The more simple form, summary process, applies to cases
in which it is known from sure and authentic
documents that a marriage was made invalid
by an impediment of disparity of cult, holy
orders, solemn vow of chastity, previous
marriage bond, consanguinity, affinity or
spiritual relationship, and it is certain that
no dispensation has been obtained. Then the
Bishop or his delegate can declare the nullity
of the marriage after summoning the parties
and giving the Defender of the Bond an
opportunity to examine into the case.
By far the greater number of declarations
of nullity are under this summary process.
All other cases go before the tribunal of
three Judges.
A marriage may be impugned (i.e., validity questioned) by one or both of the
parties unless they have been the cause of
the impediment. The Promoter of Justice
may impugn the marriage in the case of
impediments of a public nature, or when a
marriage has been denounced by a party not
entitled to impugn it and the public good
demands it.
When a party believes there is ground to
question the validity of his or her marriage
the advice of the local parish priest is usually sought. The party is then referred to the
Officialis and he in turn will designate one
of the advocates to make a preliminary report. The party may, however, go directly
to any of the advocates in the first instance.'
An Auditor is then appointed. He makes
a preliminary report on the facts as submitted and the competency (jurisdiction) of
the Court and submits the same to the Officialis. If there is probable cause for the
action, the Libellant signs a mandate to an
attorney, similar to a power of attorney, and
one or more advocates may be appointed.
A libel is prepared, signed by the plaintiff
or the attorney, and filed with the Officialis.
He then designates the collegiate tribunal
of three judges and they determine the jurisdictional question and the right of the plaintiff to act and they either accept or reject the
libel. If the libel is rejected for defects which
can be corrected, an amended libel may be
filed.
The examination of the parties and witnesses is conducted by the Auditor. The
"The names and addresses of all the members of
the court and the advocates for the Philadelphia
diocese are published in the Catholic Directory in
Philadelphia. No doubt similar publicity is effective in all dioceses. Parties seeking advice should
be referred to the Officialis. or one of the Advocates. The investigation of a case of invalidity of
marriage includes the question of a possible validation having taken place.
THE CATHOLIC LAWYER
Judges do not attend. The Promoter, the
Defender and the Notary are present, and
only one witness at a time. Ordinarily the
parties (with their attorneys or advocates)
are not admitted while not actually testifying, but exceptions to this rule may be
made in the discretion of the Auditor. Questions, which may be supplemented by the
Auditor, are prepared in writing by the
Defender of the Bond in advance of the
trial and submitted in a sealed envelope and
opened by the Auditor in the Court room.
The Procurator and the Promoter of Justice
may also submit questions to the Defender
of the Bond for submission by the latter to
the Auditor, and further questions may be
presented during the examination.
The Notary commits to writing all the
questions and answers. Each witness is
sworn both before testifying and after reading the answers, or having them read to him,
and signing the written record. The oath is
similar to that of our civil courts and affirmation is acceptable on the part of any witnesses who are opposed to swearing.
After the completion of the hearing or
hearings, a brief is prepared by the Procurator (attorney) representing the party in
action (plaintiff), and one or more of the
advocates may file briefs. The defendant or
his attorney may also file a brief. These are
delivered to the Defender of the Bond and
he prepares a brief presenting any reasonable grounds in favor of the marriage, and
submits the record and briefs to the Court.
The judges then study the record and
briefs and each separately prepares an opinion. They then meet at a fixed time, and after
discussion, if an agreement is reached the
sentence (judgment) is written by the
Ponens (Recording Judge). If no decision
can be reached, further examination of wit-
nesses might be directed, and other judges
can be appointed. In nullity of marriage the
sentence is "Constat de Nullitate" when
nullity is proved, or "Non Constat de N'ullitate" when nullity is not proved.
The Instructions issued from Rome provide that if an impediment is of such a nature
that the consent of the consort suffices to
remove the obstacle to the marriage, the
Officialis should submit the matter to the
Bishop, who, according to circumstances,
may instruct the pastor or other priest to
seek to induce the consort to validate the
marriage.1
If the court of first instance decides that
the marriage is invalid, the Defender of the
Bond is obliged to appeal to another court.
This is usually the Metropolitan (Archbishop's) Court, unless this court was the
court of first instance, in which case the
Court of Appeal would be that of the
particular Bishop or Archbishop whose
court has been chosen by the Archbishop
and approved by the Holy See as a permanent Court of Appeal for such cases. The
appeal can be taken directly to the Rota.
If the Court of Appeal confirms the sentence of the court of first instance against
the validity of the marriage, the Defender
of the Bond may acquiesce, unless he conscientiously thinks that a further appeal
ought to be taken.
If there is no appeal from the second judgment of invalidity within ten days, then the
parties are free to marry. The result of the
"Referring to our civil divorce law, the above
mentioned note "The Administration of Divorce"
states:
"One fault with present divorce procedure is
the absence of any provision for an attempt to heal
the marital rift. This need has been recognized by
recent proposals for reforming divorce procedure. .." (1224)
OCTOBER,
1955
trial is noted on the baptismal and marriage
records of the parties. The opinions of the
diocesan judges are preserved and kept
secret for ten years and then destroyed.
The expenses borne by the parties in a
nullity case are established by the court, and
they are actually less than the clerical expenses of the trial and considerably less
than the expense of a civil divorce case. The
judges receive no compensation other than
their regular salaries as priests. Parties who
certify that they cannot pay are exempt. In
the summary process referred to the fee is
nominal and, again, does not cover the
actual expense.
The Rota
Appeals may be taken from the Diocesan
Court to the Rota in Rome, which is the
highest court of appeal. This consists of sixteen judges who are Doctors of Theology
and of Canon Law and they are known as
Auditors. They hear matrimonial trials in
groups of three or more judges, but cases
may also be heard by the entire court. Advocates appear for the parties and file
briefs.'
" The decisions of the Rota have not always had
a good press in this country and misunderstanding
has often resulted. An example is the famous
Marlborough-Vanderbilt case which attracted attention on account of the prominence of the parties.
In 1894 Consuelo Vanderbilt married the Duke
of Marlborough in an Episcopalian Church in
New York. There was discord from the beginning.
A separation took place in 1905 and a civil divorce
was obtained in 1920. After both had remarried.
Consuelo, in 1926, brought a proceeding for nullity in the Court of the Catholic Diocese of Southwark. The decision was for nullity. It was appealed
to the Rota and affirmed. There was ample testimony showing that the bride's mother used
The rights of the poor are carefully protected. Canon Law provides that those who
are unable to bear the expense of their case
have a right to be relieved of all costs, and
those who are partially unable have a right
to a reduction of the costs. There is a roll
of advocates entitled to practice in the Rota.
Their fees are quite moderate and are all
regulated by a schedule. Some laymen, especially trained in canon law, are on the roll of
advocates. The sentences, i.e., the decrees,
with review of facts and law, are published
in bound volumes after ten years from date
of deliverance.
The records of the Rota decisions for
1953, published in the May, 1954, issue of
the official "Acta Apostolicae Sedis," show
that 172 cases involving the validity of
marriage were decided in that year. Nullity
coercion, threatened that a refusal to marry the
groom would cause her death through heart
failure and practically imprisoned the bride in
order to force her to marry him. The Court held
that the marriage was contracted because of grave
fear within the meaning of the Code of Canon
Law. A question raised was whether cohabitation
had not supplied consent. On this the law provides
that for validation of an invalid marriage the renewal of consent must be a new act of the will
ratifying a marriage known to have been null. In
the absence of this knowledge there is only a
continuance of the same consent. There was no
proof or presumption of such knowledge and no
validation since the requirements for validation
had not been met. (It should be noted again that
the Code of Canon Law not only states natural
law but legislates positive law). (See AyrinhacLydon, para 215, References).
The cynical suggestion that money had anything
to do with the case should be easily dispelled.
Consuelo Vanderbilt Balson, the plaintiff in the
case, writes in "The Glitter and the Gold" that
the accusation is completely false, saying:-"Counsel fees and costs of collecting evidence were the
only disbursements and were much less than the
charges of a real divorce."
THE CATHOLIC LAWYER
was declared proven in 65 cases and not
proven in 107 cases.'"
The following further facts concerning
these 172 cases may be of interest:
Cases in which the advocate collected
a fee ........................
106
Cases in which no fees or costs were
collected ......................
66
Total ..................
Affirmative decisions with fee .......
Negative decisions with fee .........
Affirmative decisions (nullity) without
fee or costs ...................
Negative decisions (nullity not proved)
without fee or costs .............
172
40
66
Total ..................
172
25
41
The breakdown on the basis of averred
causes of nullity was as follows:
Basis of Nullity
Negative
Affirmative
(Nullity
(Nullity) Not Proved)
Total
Impediments:
Bond of previous
marriage .......
2
Consanguinity .... Affinity .........
Impotency .......
3
Affirmat
(Nullityy)
Negative
(Nullity
Not Proved)
Force and Fear ....
21
33
54
Insanity .........
1
Defect of Liberty...
I
Simulated Consent.
Conditions
9
3
12
15
3
4
7
Basis of Nullity
ive
Total
Defects of Consent:
(Unspecified)
. .
Intention or Condition
Against Unity of
Marriage ....
Against Indissolubility ...... 17
Against Procreation ..... 23
9
26
36
59
Total .....
126
209
83
The total of 209 exceeds the total cases
of 172 because more than one ground was
averred in a number of cases, and the decision is simply that nullity is or is not proven
on one of the claimed bases.
REFFERENCES
3
I
I
19
Cicognani, Amleto Giovanni, Canon Law,
Dolphin Press (1934).
Doheny, William J., C.S.C., Canonical Procedure in Marriage Cases, Formal, Bruce
Pub. Co. (1948).
Woywood, Stanislaus, O.F.M., A Practical
The analysis of the 1954 figures are not available
as this goes to press, but the totals are available
unofficially:
Commentary on the Code of Canon Law,
1
1
1
16
245 marriage cases were decided by the Rota in
1954 of which the decision was affirmative (nullity proven) in 131, and negative (nullity not
proven) in 114 cases. Of the total of 245, 55 were
free cases.
Jos. E. Wagner, Inc. (1952).
Ayrinhac-Lydon, Marriage Legislation in the
New Code of Canon Law, Benziger Bros.
(1940).
Bouscaren, T. Lincoln, S.J., The Canon Law
Digest, Bruce Pub. Co.